The Pre-Action Protocol for Construction and Engineering Disputes (the Protocol) has proved to be an effective platform for settling disputes, but a revision to the Protocol provides a welcome way of dealing with two situations where the old Protocol was ineffective: where there is a serious dispute which does not require detailed factual enquiry and where there is some disagreement as to what the Protocol requires.

The Pre-Action Protocol is changing

From 9 November 2016 the Protocol is changing and presents at least three possible avenues for practitioners and clients to follow before starting proceedings:

1. Carry on as before and engage with the Protocol stages, including the without prejudice meeting.

2. Agree not to comply with any stages of the Protocol before entering into court proceedings.

3. Agree to appoint a Protocol Referee to ensure full and strict compliance with the Protocol.

Soft Protocol

A major change to the Protocol is that the Claimant will no longer be required to comply with it and can immediately issue court proceedings if all the parties to the proposed proceedings expressly agree so in writing.

Accordingly if you know your opponent is not going to engage in the Protocol, or you have reached an impasse in communications before instructing lawyers, you can now simply agree to do away with the Protocol and immediately issue proceedings, so long as you have written agreement with the opponent.

Whereas previously if a party did not comply with the Protocol they could face potentially severe cost consequences, this change gives the parties much more freedom to commence court proceedings without the delay of complying with the Protocol stages.

Even where there is no agreement not to comply with the Protocol, it will now only be flagrant or very significant disregard for the terms of the Protocol that will lead to the Court imposing cost consequences on the defaulting party. This express softening of the approach to the Protocol is rather new.

Hard Protocol: The New Kid on the Block

The Protocol Referee Procedure (PRP) is an entirely new concept whereby the parties may agree to engage what is called a Protocol Referee Procedure. This effectively brings in a third party referee to the pre-litigation phase to help ensure that the parties comply with the Protocol and/or assist with the resolution of any material non-compliance with the Protocol.

Both parties need to agree to use the PRP; it is not (yet) open for one party to appoint a Protocol Referee (PR). If both parties agree the applicant must pay a nomination fee of £3,500 plus VAT.

The PR will promptly inform the parties (within 10 working days after receipt of the Notice of Appointment) of any appropriate directions for future conduct of the Protocol and whether there has been any non-compliance. The decision of the PR will be binding on the parties who will need to comply with it until the dispute is finally determined by legal proceedings or by agreement between the parties.

It is of course yet to be seen whether the PR’s role will be effective and how many parties will take it up but the clear design goal or ideology is that using a PR will avoid the need for the parties to go to Court in all but the most extreme cases and lead to a significant cost saving. If that is the outcome then no doubt it will become an often used tool for construction professionals and practitioners in pre-action conduct.

Conclusion

In our view cases involving potentially time consuming and expensive litigation may well benefit from the appointment of a PR to help maximise the usefulness of pre-action correspondence and increase the chances of achieving settlement on agreeable terms.